ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

Oct 21, 2011

Lawyers and blogging

Lawyers and blogging
Source: Washington Post

Attorneys and law firms that maintain blogs might find the article by Catherine Ho published in The Washington Post on October 9, 2011, of interest. Ms.Ho's lead sentence: “Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.”.

The item is posted on the Internet at:


Oct 20, 2011

Why the Law Is So Perverse by Professor Leo Katz -- a NYPPL book review

Why the Law Is So Perverse by Professor Leo Katz -- a NYPPL book review
Published by the Chicago University Press - http://press.uchicago.edu/ucp/books/book/chicago/W/bo11518130.html

From time to time a ruling is handed down by a judicial or a quasi-judicial panel that may be characterized as a decision in search of an opinion because of the diverse views expressed by the judges explaining their rationale for their conclusions. Indeed, it may be necessary to create a Venn diagram -- a schematic diagram used in logic theory to depict collections of sets and represent their relationships -- to understand what some might term the paradoxes in the decision.

In his most recent book, Why the Law Is So Perverse, Professor Leo Katz, Frank Carano Professor of Law at the University of Pennsylvania Law School, considers a variety of interesting approaches to determining “the law of the case” or perhaps more accurately, what are the elements in play that result in “the law of the case.”

The titles of a number of the book's chapters such as “Why Does the Law Spurn Win-Win Transactions?” and "Things We Can’t Consent To, Though No One Knows Why", illustrate the types of conundrums or paradoxes in the law that Professor Katz addresses. Other chapters discuss such issues as “Why Is the Law So Full of Loopholes?” and “Why Is the Law So Either/Or?”

Using examples involving a variety of areas of the law including criminal law, election law and property law, leavened by ethical and societal considerations, Professor Katz sets out intriguing examples of “what is” and suggests alternative views as to “what could be” or, possibly, “what should be.”

The first line in Professor Katz’s introduction to this work sets the tone when he states that There are ideas that are preposterous on their face, and yet one is hard pressed to say why. This book is about such ideas.

The following excerpt provides a taste of what the reader will encounter in exploring this volume:

The criminal code contains a long list of specific offenses (murder, theft, rape, etc.) as well as a separate list of defenses (self-defense, insanity, etc.). This kind of division into offenses and defenses is characteristic of most areas of law. Usually the prosecutor, or the plaintiff, has the burden of proving that the defendant is guilty of the offense, and it then falls to the defendant to show that he was acting in self-defense or out of insanity or whatever. Now, one might wonder why things are set up that way. One might for instance define murder not as it currently is, as an intentional killing, but as an intentional killing other than in self-defense or while insane. One might then require the prosecution to make the case not merely that the defendant killed intentionally but that he was not acting in self-defense and that he was sane.

Professor Katz explains: This, then, is the groove into which I will be stepping, the perspective from which I will be proceeding—legal doctrines thought of as instances of multicriterial decision making.

This concise work is thought provoking and provides the reader with insights that both the law professional and the interested layperson will find illuminating and, perhaps, trigger considering approaches to the legal issue at hand that an advocate could use in analyzing and then arguing, or defending, his or her position or rebutting his or her opponent's arguments.

In essence, Professor Katz challenges the reader to think about what is often accepted as “black letter law” and ask him or herself to identify the true issues and the ethical considerations involved and consider the existence of an alternative theory that demands evaluation. In other words, Professor Katz invites his readers to think outside the box.

Why the Law Is So Perverse, 250 pages, may be ordered from the University of Chicago Press, http://press.uchicago.edu/ucp/books/book/chicago/W/bo11518130.html and is available as a hard cover book or as an e-book.

Reviewed by Harvey Randall
Editor and General Counsel, NYPPL

Termination of an individual serving a disciplinary probationary period controlled by the terms of the stipulation providing for the disciplinary probation

Termination of an individual serving a disciplinary probationary period controlled by the terms of the stipulation providing for the disciplinary probation
Matter of Unified Court Sys. of the State of N.Y. v New York State Ct. Clerks Assoc., 2006 NY Slip Op 30641(U), [Not selected for publication in the Official Reports]

The issue before Judge Lippmann: may a union bring a contract grievance over the alleged breach of a stipulation setting a disciplinary action entered into by the parties after negotiations based on the union's collective bargaining agreement as distinguished from an alleged breach of the collective bargaining agreement itself is to be made by this court or by the arbitrator.

The stipulation provided for a disciplinary probation and thus the employee could be terminated without a hearing or any of the other procedural safeguards afforded by Article 24 of his collective bargaining agreement if he breached any of the limitations set out in the stipulation.

When the employee was summarily terminated without notice without specifying which of the several limitations he had breached, the union filed a contract grievance contending that the summary termination without notice "plainly breached both the spirit and the express terms of the stipulation,” claiming that the employee “had not violated the terms of the stipulation. The grievance was denied and the union demanded arbitration.

The Unified Court System filed an Article 75 petition seeking to stay arbitration, arguing that “under applicable law and court rules it had every right to fire [the employee], a probationary employee, as it did, and that the underlying grievance was not a contract dispute but rather a disciplinary matter affecting only one union member, whose only proper avenue of redress was to bring an Article 78 proceeding.”

Judge Lippmann said that it was well established that generally, "[absent a statute or rule to the contrary, a probationary employee may be discharged without a hearing and without a statement of reasons," provided there was no showing that the termination was for a constitutionally impermissible purpose, in bad faith, or in violation of law. [see Reynolds v. Crossou, 183 AD2d 48.]

However, said the court, although the dubbed a probationary employee, here the individual is not a probationer in this class nor subject to those legal tenets. Rather his status as a probationary employee stems solely from the stipulation, rather than from the normal course of the hiring process, thereby limiting the Court System's right to terminate him.

After exploring the several arguments made by the parties, Judge Lippmann denied the Unified Court System’s application for a stay of arbitration and granted the union’s cross-motion seeking arbitration as provided for in the collective bargaining agreement.

Significantly, UCS did not identify the reason or reasons leading to summarily terminate the individual. Judge Lippmann said that to the extent that the employee “could have brought an Article 78 proceeding challenging the factual determination “ underlying his termination, such an action was “an impossibility since … at no time was [the individual] formally notified of the reason for his termination.

The seminal case addressing disciplinary probation issue presented to Judge Lippmann is Taylor v Cass, 122 A.D.2d 885, 505 NYS2d 929. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after the court found that he was improperly dismissed while serving a disciplinary probation.

The terms of his probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, however, was subsequently summarily terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the earlier settlement: -- intoxication on the job.

Designation of employees as managerial


Designation of employees as managerial
PEF and State of New York, 35 PERB 4047

PERB's Director of Public Employment Practices and Representation Monte Klien ruled that incumbent of the position must participate in the policy making process on a regular basis in contrast to merely serving as a high level supervisor in order for the individual to be designated managerial.*

The Public Employees Federation [PEF] objected to having the incumbent of the position of Forester 4 in the State Department of Environmental Conservation designated managerial and thereby excluded from the State's Professional, Scientific and Technical Unit represented by PEF.

Although the incumbent, Bruce Williamson, performed high-level supervisor duties and made recommendations that were used in formulating policy, this was not found sufficient to justify designating him managerial within the meaning of the Taylor Law. Kline pointed out that PERB has consistently followed the Legislature's caution that "employees be excluded from bargaining units only upon a very clear exercise of managerial responsibilities" and it is the employer's burden to present evidence "which compels such exclusion."

Kline said that "[w]hile an employee need not be the ultimate decision maker to be designated a policy formulator, the employee must participate with regularity in the process by which policy making decisions are made." The Department of Environmental Conservation was unable to demonstrate this factor to Kline's satisfaction and he ruled that the Forester 4 position encumbered by Williamson should be included in the unit represented by PEF.

* Although there it a tendency to refer to “managerial” or “confidential” positions, it is the incumbent of the position, rather than the position itself, that is designated “managerial” or “confidential”. For example, Section 201.7(a) of the Civil Service Law provides, in pertinent part, as follows: “Employees may be designated as managerial only if they are persons ... who ….” See, also, paragraphs (e), (f) and (g) of §201.7 that also define “managerial” in terms of incumbents of certain positions in contrast to designating the positions themselves as “managerial.”

Creating a negotiating unit


Creating a negotiating unit
Teamsters Local 264 and Town of Cheektowaga, 35 PERB 4020

In considering the petition filed by Local 264 seeking represent a proposed collective bargaining unit consisting of part-time court officers employed by the Town of Cheektowaga, PERB Administrative Law Judge [ALJ] Lynn Fitzgerald ruled that the part-time court officers should be included in the bargaining unit represented by the Cheektowaga Employees Association [CEA].

Local 264 had argued that the eight part-time court officers did not share "a community of interest" with the employees in the unit represented by CEA. It contended that “because CEA has no part-time employees, there is an inherent conflict between court officers and CEA employees, who are all full-time employees with benefits," and the part-time court officers who do not receive such benefits.

The ALJ said that PERB "has long held that, in the creation of bargaining units, it is not sufficient that the petitioned for unit is appropriate; instead, the question is whether the unit is the `most appropriate,' and, further, whether it provides for the creation of the largest possible unit which permits for effective negotiations."

What is the "most appropriate" unit? Citing Hewlett-Woodmere Union Free School District, 24 PERB 4043, Judge Fitzgerald said that:

It is well settled that the "most appropriate unit" is the largest one permitting for effective and meaningful negotiations; only diverse employee interests, either actual or potential, warrant the establishment of smaller units.

Significantly, the ALJ noted that the court officers' duties did not entail their being engaged in any law enforcement responsibilities that might otherwise justify their placement in a separate or different negotiating unit.

In County of Erie and Eric County Sheriff, 29 PERB 3031, PERB held that there is a unique community of interest among law enforcement personnel who are engaged in the full range of law enforcement activities such as the prevention and detection of crime and the enforcement of the general criminal law of the State.

Workfare with a public agency not public employment


Workfare with a public agency not public employment
McGhee v City of New York, NYS Supreme Court, Ia Part 5, Justice Stallman, 2002 N.Y. Slip Op. 50332(U), [Not selected for publication in the Official Reports]

According to the ruling by Justice Stallman in the McGhee case, individuals receiving public welfare benefits while working for the City of New York under a Work Experience Program [Workfare] are not employees for the purposes of bringing a lawsuit under the State's Human Rights Law.

McGhee alleged that she had been sexually harassed during a Workfare assignment. The City, contending that Workfare participants are not employees, moved to dismiss McGhee's complaint.*

Justice Stallman dismissed McGhee's complaint. The court decided that under the facts of this case, McGhee's Workfare participation did not create any employment relationship between the participants and the City.

The court noted that "in a different context," the Court of Appeals concluded that Workfare participants were not "employees," citing Brukhman v Giuliani, 94 NY2d 387.

In Brukhman, the Court of Appeals ruled that the prevailing wage provision of the State Constitution -- Article I, Section 17 -- does not apply to Workfare participants because participation in the Workfare program is the statutory "condition of continued receipt of public assistance grants."

Section 330.5 of the Social Services Law specifically list certain limited circumstances under which Workfare participants are deemed "public employees" and categories of "work activities" under which public assistance recipients are to be given the benefits and protections of similarly-situated employees. None applied to McGhee.

However, McGhee did have a possible remedy available to her. Justice Stallman pointed out that she "could have filed a grievance concerning the alleged sexual harassment with the New York City Human Resources Administration, the local service district under the Social Services Law" and if dissatisfied with its ruling, she could have "appealed to the State for a fair hearing."

* A federal court had previously dismissed McGhee's Title VII harassment claim after finding that she was not an employee within the meaning of the Personal Responsibility and Work Opportunity Reconciliation Act. This Act mandated adoption of "Workfare" programs by public entities.

Oct 19, 2011

Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed


Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed
Matter of Licciardi v City of Rochester, 2011 NY Slip Op 06781, Appellate Division, Fourth Department

The Appellate Division modified a portion of decision that found Mark A. Licciardi guilty of a number of act of alleged misconduct and remanded the matter to the City for “new findings” concerning one of the charges and for its reconsideration of penalty initially imposed, termination.

The court agreed with Licciardi contention that “several of the findings of misconduct rendered following a hearing are not supported by substantial evidence.”

In particular, the Appellate Division ruled that four of the charges of misconduct involved Licciardi's part-time outside employment while on sick leave from his employment as a firefighter. However, said the court, there was no relevant proof as a reasonable mind may accept as adequate to support [the] conclusion that working an additional part-time job while employed by respondent's Fire Department was not permitted or that the part-time job itself was improper or illegal.

The Department had alleged that Licciardi's conduct violated certain Department rules. The court ruled that there was no substantial evidence that Licciardi has conducted himself “in a manner unbecoming[] or prejudicial to the good reputation, the order, or discipline of the . . . Department” nor that he failed to conduct himself “at all times … to the credit of the Department.”

Further, the Appellate Division overturned the Department’s finding that Licciardi had violated the Department's rule that a member shall not " knowingly or intentionally make or cause to be made a false report in connection with the . . . Department or other employees thereof'” when he submitted a letter from his treating physician that stated without qualification that he was unable to work during the time that he was out on sick leave. The court noted that at the hearing Licciardi’s physician testified that Licciardi’s disability was causally related to a work incident at the Department and that, although he was prevented from working as a firefighter, the part-time job outside of the Department was therapeutic.

The court’s conclusion regarding this allegation was that it was not supported by substantial evidence.

Also, said the court, it agreed with Licciardi's contention that he had been found guilty of a charge “based on conduct that was not alleged in the single specification supporting the charge” and thus must be annulled “as outside the scope of the charge.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06781.htm
NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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